In August, the Allahabad High Court flagged the Uttar Pradesh government’s misuse of the Goondas Act and asked it to frame guidelines before October 31 to prevent such abuse of power.
The Uttar Pradesh Control of Goondas Act, 1970 allows the district administration to extern or banish an individual from that district as a preventive measure on apprehending a threat to public order.
How widespread is the misuse of the statute? Scroll examined its provisions, as well as instances of its operation. The findings not only validate the High Court’s concern but depict an excessively open-ended legislation that vests nearly unchecked power to curtail citizens’ liberty entirely up to the discretion of executive magistrates. In many cases, the act is applied for political reasons to try and crush dissent.
What does the Act say?
A district magistrate can order the ouster of a person defined as a “goonda” under the act on the suspicion that they may commit a criminal offence within the district.
The externment order can be for up to two years. The order may also include directions on the manner in which the “goonda” must conduct themselves as well as prohibitions or restrictions on the possession or use of certain items by them. Further, the magistrate may also order the “goonda” to be put under surveillance.
Before passing the externment order, the “goonda” is first given notice by the magistrate to respond to the allegations against them. The “goonda” can avail of the services of a lawyer to represent them as well as furnish witnesses.
In order to arrive at their order, the magistrate may rely on evidence outside the ambit of the Indian Evidence Act. This is to say, the magistrate can rely on any evidence, regardless of whether it may be legally admissible in a court, purely based on their discretion.
Violation of the externment order is punishable by imprisonment up to three years.
Appeals against the externment order lie before another executive authority, the Commissioner. There is no judicial authority involved in the review process.
Arbitrary, broad sweep of Act
The statute provides eleven categories of persons who qualify as a “goonda”. These include habitual offenders under certain prescribed penal provisions, as well as those “involved” in certain other penal offences such as house grabbing, human trafficking, animal cruelty and cow slaughter, among others.
The use of the word “involved” means that even if someone is not actually convicted of an offence under the enumerated penal offences, they may still fit the definition of “goonda” even if they have been booked for that offence, regardless of whether they are later discharged or acquitted.
Several social activists from different parts of Uttar Pradesh that Scroll spoke to confirmed that due to this, false cases under the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 are regularly filed against Muslim men. They then have externment orders passed against them under the Goondas Act.
The definition of “goonda” also includes the rather open-ended, subjective category of someone who is “generally reputed to be a person who is desperate and dangerous to the community”.
Under the act, one of the conditions for a magistrate to proceed against a “goonda” is that witnesses are unwilling to testify against the person because they fear danger to their safety. This allows a magistrate to oust anyone from the district, purely on their own discretion, without sufficient evidence.
Scroll spoke to three people who claimed that the Goondas Act had been misused against them by the police.
Journalist ousted over cow slaughter charge
Last December, journalist Zakir Ali Tyagi was ousted from his home district of Meerut through an externment order passed under the Goondas Act, ostensibly because he had been booked under the Prevention of Cow Slaughter Act in 2020. Tyagi alleged it was due to his journalism.
Forced to live away from home for seven months, Tyagi claimed the use of the law has had a scarring effect on his life.
“My reputation and social image is spoilt,” he said. “I face a barrage of abuse on social media regularly, where I’m called a ‘goonda’ and a habitual criminal.”
Forced to leave home after Goondas Act notice
Fauwad, who did not provide his full name since he did not wish to be identified, operates a Common Service Centre in Azamgarh. Common service centres are physical facilities present in mostly rural and remote areas, where citizens can access the government’s online services and register for welfare schemes. Their operators are termed “village level entrepreneurs” in official parlance.
Fauwad contested the pradhan election in his village, near Azamgarh, in June last year. He said that his candidature irked some powerful people in the village: soon after the election, in which he did not win, he was accused of cow slaughter, and arrested by the police.
After spending a cumulative six months in detention across three spells, he was released.
Soon after, the district magistrate sent him a notice under the Goondas Act. The local police would also barge into his home whenever there would be crime reported in the area, asking him about his whereabouts during the reported crime.
“I was being treated like a habitual criminal,” he said, “even though I have had an absolutely clear record”.
Eventually, Fauwad left his home to escape the harassment. He now lives in a market in Azamgarh city, where he operates his common service centre.
Since moving out, the police harassment and the proceedings under the Goondas Act against him have ceased, he said.
Externment order against an activist
Gambhira Prasad is a former pradhan of Korchi village in the Sonbhadra district.
He used to be an activist. He said that he had been actively involved since 2002 in the Kanhar Visthapit Sangh or the Kanhar Displaced People’s Federation, a people’s movement over fair compensation for land acquired by the state government in Sonbhadra for an irrigation scheme.
According to him, in December 2014, in order to crush the movement, the police, after a scuffle with some protesters, pressed false charges against several activists involved, including him. Between that December and April 2015, he was booked in three separate cases involving offences such as rioting, membership of an unlawful assembly, attempt to murder, causing hurt to a public officer, and dacoity.
He maintains that he did not commit any of those offences. Indeed, he has not been convicted for any of those offences yet.
In 2016, an externment order for six months under the Goondas Act was passed against him.
“I appealed to the Commissioner, but there was no hearing,” he said.
For those six months, Prasad had to live in Chhattisgarh, his life completely disrupted, he said.
In spite of his absence, the sub-divisional magistrate frequently visited his home in Sonbhadra.
“I was placed under 24x7 surveillance by the police,” he said.
Since returning home, Prasad has chosen not to actively participate in public movements.
Judicial precedent
The August order of the Allahabad High Court is not the first instance of the higher judiciary recognising the scope of misuse inherent in the Goonda Act’s broad and vague provisions.
A Constitution bench of the Supreme Court had, in 1960, struck down as unconstitutional the similar Central Provinces and Berar Goondas Act, 1946. It did so on the grounds that “goonda” was defined ambiguously in that legislation, and the act failed to provide sufficient safeguards for the protection of fundamental rights.
In 1999, the Allahabad High Court had cautioned against the misuse of the Uttar Pradesh Goondas Act, in a manner reminiscent of the recent judgment. Then, too, the court warned against magistrates issuing show cause notices under the act for minor offences without applying their minds.